Today's cases involve appeals against Equality Tribunal findings:

The first case looks at a claim brought in respect to a selection process. The claimant argued that he was discriminated against on the basis of his age.

The second case concerns a claim in respect to discrimination on the basis of pregnancy which led to a constructive dismissal.


RGIS Inventory Specialists LTD v Liam Davis [2014] IRLC EDA 1415

Legislation: Industrial Relations Acts, 1946 to 1990; Section 83, Employment Equality Acts, 1998 to 2011

Keywords: discrimination; age

This was an appeal against a decision by an Equality Officer and highlights the need for a comparator in employment equality cases.

The claimant suggested that he was discriminated against in relation to the post of stock controller with the respondent.

Following successfully completing an online application questionnaire the complainant was informed that his application had been successful and was informed at a briefing session surrounding the job role that the complainant would be required to commence training the following week. The complainant noted in the case that unfortunately due to a holiday commitment he was unable to attend the session he was given and said the manager informed him that an alternative date would be made available.

The complainant then noted how on return from his holidays, he received notification from the respondent informing him that his application had been unsuccessful.

The basis of this case surrounded the complainant's belief that his age was the reason why he was unsuccessful. The complainant believed that the notification from the respondent informing him that his application was unsuccessful was on the basis of his age and viewed this as the only viable reason that could be found for such actions. The claimant noted that at the briefing session he was the oldest person there, with the others in attendance averaging in their twenties.

The respondent denied the claimant's claim, stating that age was not a consideration. Rather it was the claimant's failure to attend the second session due to a holiday commitment which resulted in a rejection letter automatically being sent.

The court noted how the claimant had failed to rely on an actual comparator in advancing his case. The court concluded that no evidence could be adduced from which an inference could be drawn and therefore the court was of the opinion that whilst the claimant may have believed that he was subjected to discriminatory treatment on the basis of his age there was insufficient evidence to uphold this claim.
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Moonlite Cleaning Services Limited v Jolanta Drabik [2014] IRLC EDA 1416

Legislation: Industrial Relations Acts, 1946 to 1990; Section 83, Employment Equality Acts, 1998 to 2011

Keywords: Sex Discrimination, Pregnancy

This case was an appeal from the Employer against a decision of the Equality officer before the Labour Court and highlights the need for both parties in dispute to produce credible evidence if they are to be successful or limit liability in litigation.

The original claim surrounded discriminatory treatment on the grounds of her pregnancy which ultimately led to her dismissal. The Equality Officer concluded that the respondent company had discriminated against the complainant on the basis of her gender and thus they held that she was entitled to claim constructive dismissal. On the facts, the Equality Officer subsequently awarded the complainant €22,000 for the discriminatory treatment she endured in the course of employment and a further €11,000 for the distress caused by victimisation.

The complainant was employed with the respondent as a cleaner. Immediately following her announcement that she was pregnant to the Managing Director, her contracted days were reduced to three days per week. When the complainant queried this decision she was told by the Managing Director that she "could not work in the Hotel with a big belly”. Before her hours changed the complainant decided to take annual leave to ensure she would get the benefit of her full 5 day week payment. Upon returning to work she discovered that she had no hours on the roster at all, on enquiry she was advised that she had been placed on health and safety leave. This decision was made without any consultation with the complainant. Subsequently she was given a fixed term contract which identified her as a "part-time Cleaning Assistant" which meant that the complainant had suffered a demotion from her role as full time cleaning supervisor. The complainant refused to sign the contract due to this difference.

The complainant was further victimised when the respondent called a meeting of staff to inform them that the complainant was bringing a claim against him and to encourage staff to make complaints against her.

The complainant later resigned her position by letter as a result of the difficulties she had endured in this position.

The respondent claimed that they were aware of the difficulties that the complainant had had in previous pregnancies and therefore they were more than happy "to accommodate her in any way possible". The respondent claims that it was the complainant who requested a reduction of days at work as she intended to apply for social welfare payment to supplement her income. Likewise the respondent claims that the complainant also sought Health and Safety leave to avail of the health and safety benefit.

The respondent claimed that he did not invite staff to make complaints against the respondent.

The court held that the complainant had failed to establish a prima facie case in relation to the claim of victimisation. The court held that it could not accept hearsay evidence and the lack of credible evidence to support this claim which meant that ultimately the court could not draw an inference of victimisation.

However the court did find an inference of discrimination in the claim that the complainant's hours were changed and later removed from the rota and from the fact that another employee was appointed to the complainant's supervisory position. The court noted that this, coupled with the claims surrounding the demands on the complainant to apply for social welfare to cover her loss, discharged the burden on the complainant to establish a prima facie case, transferring the burden upon the complainant.

The court noted that "the respondent failed to discharge that onus" and consequently the court found that on this basis the complainant was discriminated against by reason of her pregnancy. Consequently the court ordered that the respondent pay the complainant €16,000 for the discrimination she endured.
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